IN THE CASE OF:	  

		BOARD DATE:	  24 March 2011

		DOCKET NUMBER:  AR20100021898 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) be removed from his official military personnel file (OMPF).

2.  He states the Article 15, which is filed in the restricted portion of his OMPF, was supposed to be accompanied by all allied documents in accordance with Army Regulation 27-10 (Military Justice), but it was filed without the documents.  Additionally, he believes the Article 15 has caused him to be passed over for promotion to master sergeant.  He maintains that 11 years is a long time to have a mistake held against him and opines it was not the commander's intent to have the mistake impact on his career.  He contends the Article 15 should have been removed after five years.

3.  He provides a statement of support.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he originally enlisted in the Regular Army (RA) on 25 November 1986.  He served 4 years, 5 months, and 12 days and was honorably released from active duty on 6 May 1991.  On 14 February 1992, he enlisted in the Army National Guard (ARNG) and remained in the ARNG until he was honorably discharged on 10 January 1995 for immediate enlistment in the RA.  He has served continuously since his enlistment in the RA and was promoted to staff sergeant (SSG)/E-6 on 1 June 1999 and to sergeant first class (SFC)/E-7 on 1 February 2002.  
2.  On 4 March 1999, while in the rank/grade of SSG/E-6, nonjudicial punishment was imposed against him by his battalion commander for breaking medical quarantine.  The commander directed the DA Form 2627 be filed in the restricted portion of his OMPF.  The applicant initialed the block indicating that he "do not appeal."  Block 11 (Allied Documents and/or Comments) of his DA Form 2627 lists the following:

* DD Form 689 (Individual Sick Slip)
* Statement by Staff Sergeant B.
* Statement by Sergeant N.

3.  In a supporting statement, dated 9 August 2010, LTC C. said he was the applicant's company commander at the time the Article 15 was administered.  He said the applicant has proven over the last 11 years to be a consummate professional and has distinguished himself through numerous challenging assignments, deployments, and positions of great responsibility.  He said it was never his intent to have the UCMJ action have such a long lasting effect on a fine noncommissioned officer.  He requested that the Article 15 be removed from the applicant's OMPF.

4.  Army Regulation 600-37 (Unfavorable Information) establishes policies and procedures whereby a person may seek removal of unfavorable information from official personnel files.  The regulation also ensures that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in the individual official personnel files.  The regulation states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  Claims that an Article 15 is unjust will be adjudicated by the Army Board for Correction of Military Records.

5.  Army Regulation 27-10 provides guidelines for the distribution and filing of the DA Form 2627 and allied documents.  The regulation states the original DA Form 2627 will include as allied documents all written statements and other documentary evidence considered by the imposing commander or the next superior authority acting on an appeal.  It further states that the restricted section is that portion of the OMPF that contains information not normally viewed by career managers or selection boards except as provided in Army Regulation  600-8-104 or specified in the Secretary of the Army's written instructions to the selection board. Allied documentation transmitted with the original or copies of DA Forms 2627, where filed with any of these forms, will be considered to be maintained separately for the purpose of determining the admissibility of the original or copies of DA Forms 2627.

6.  Army Regulation 27-10 defines the term setting aside and restoration. Paragraph 3-28 states that this is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  Nonjudicial punishment is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15.  The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice. "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.

DISCUSSION AND CONCLUSIONS:

1.  Although the allied documents that accompanied the applicant's DA Form 2627 are not filed in the restricted portion of his OMPF, the absence of these documents is not sufficient evidence to justify the removal of the Article 15.  He has failed to submit evidence to show that the Article 15 was submitted in error or was unjust for the purpose of removing this document from his OMPF.  Additionally, there is no provision for automatic removal of the Article 15 after the passage of time.  

2.  Further, his former company commander contends that it was never his intent to have the UCMJ action have such a long lasting effect.  However, evidence of record shows the applicant was an E-6 when the Article 15 was rendered and his battalion commander elected to have the Article 15 filed in the restricted portion of his OMPF versus the performance section.  As stated in the regulation, the restricted portion of the OMPF is not normally viewed by career managers or selection boards.  Therefore, it appears the intent of the regulation as well as the commander's intent was adhered to and the Article 15 did not hinder the applicant's subsequent promotion to SFC.  Likewise, there is no reason to believe it has hindered his promotion to MSG.

3.  In view of the foregoing, there is no basis for granting his request.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   X_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20100021898





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ABCMR Record of Proceedings (cont)                                         AR20100021898



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